Citation Nr: 0711958
Decision Date: 04/24/07 Archive Date: 05/01/07
DOCKET NO. 93-03 943 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to an increased rating for residuals of
lumbosacral nerve root injury with radiculopathy and history
of reflex sympathetic dystrophy (RSD), evaluated as 40
percent disabling beginning June 28, 1991.
2. Entitlement to an increased rating for residuals of a
pelvis fracture and separation of symphysis pubis with low
back pain, evaluated as 10 percent disabling beginning June
28, 1991, and 40 percent disabling beginning January 16,
2004.
3. Entitlement to an effective date earlier than November
21, 1991, for service connection for neurogenic bladder based
on clear and unmistakable error (CUE).
4. Entitlement to an effective date earlier than June 28,
1991, for service connection for RSD.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
Tanya A. Smith, Counsel
INTRODUCTION
The veteran had active military service from July 1969 to
September 1972. His DD Form 214 reflects additional prior
active service of 11 months and one day.
This matter came before the Board of Veterans' Appeals
(Board) on appeal of rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
When the case was before the Board in March 1998, the Board
denied the veteran's claim for a compensable evaluation for
hepatitis, granted reopening of the veteran's claim for
service connection for RSD, and remanded this reopened claim
as well as a claim for an increased evaluation for residuals
of a fractured pelvis with radiculopathy and atrophy of the
right lower extremity to the RO for further development.
While the case was in remand status, jurisdiction over the
claims folders was transferred to the RO in Winston-Salem,
North Carolina. In a November 2000 rating decision, service
connection was granted for RSD. The RO recharacterized the
RSD disability and the disability formerly rated as residuals
of a fractured pelvis with radiculopathy and atrophy of the
right lower extremity as follows: (1) residuals of
lumbosacral nerve root injury with radiculopathy and history
of RSD; and (2) residuals of pelvic fracture and separation
of the symphysis pubis with low back pain.
Thereafter, the veteran continued his appeal with respect to
the ratings assigned for the residuals of lumbosacral nerve
root injury with radiculopathy and history of RSD, and pelvic
fracture and separation of the symphysis pubis with low back
pain.
In addition, he perfected an appeal with respect to the
assigned effective date for the 40 percent rating for the
residuals of lumbosacral nerve root injury with radiculopathy
and history of RSD. In an August 2001 rating decision, the
RO found that the assignment of November 12, 1991, as the
effective date for service connection for RSD and a 40
percent rating for residuals of lumbosacral nerve root injury
with radiculopathy and history of RSD was clearly and
unmistakably erroneous and that the proper effective date was
November 21, 1991, the date of receipt of the veteran's
claim. In the November 2000 rating decision, the RO also
granted an increased evaluation of 40 percent for neurogenic
bladder, effective February 25, 1998. The veteran perfected
an appeal with respect to the assignment of this effective
date for the increased evaluation.
In a November 2001 decision, the Board denied an effective
date earlier than February 25, 1998, for the grant of an
increased evaluation for neurogenic bladder, but granted an
earlier effective date of June 28, 1991, for the grant of an
increased evaluation for residuals of lumbosacral nerve root
injury with radiculopathy and history of RSD. The Board also
remanded the appeal of the ratings assigned for the residuals
of lumbosacral nerve root injury with radiculopathy and
history of RSD, and pelvic fracture and separation of the
symphysis pubis with low back pain for further evidentiary
development. The requested development has been completed.
In addition, the veteran perfected an appeal with respect to
the assigned effective date for the grant of service
connection for neurogenic bladder based on CUE, and the
assigned effective date for the grant of service connection
for reflex sympathetic dystrophy.
In November 2006, the veteran withdrew his request for a
Travel Board hearing.
The case has now been returned to the Board for further
appellate consideration.
FINDINGS OF FACT
1. For the period beginning June 28, 1991, the neurological
impairment from the veteran's service-connected residuals of
lumbosacral nerve root injury with radiculopathy and history
of RSD more nearly approximates moderately severe incomplete
paralysis of the sciatic nerve than severe incomplete
paralysis with marked muscular atrophy.
2. For the period beginning June 28, 1991, and prior to
September 26, 2003, the veteran's service-connected pelvis
fracture and separation of symphysis pubis with low back pain
was manifested by pain and limitation of motion, but neither
muscle spasm on extreme forward bending, nor unilateral loss
of lateral spine motion in the standing position was present,
and the limitation of motion did not more nearly approximate
moderate than slight.
3. For the period beginning September 26, 2003, and prior to
January 16, 2004, from a longitudinal review, the veteran's
service-connected pelvis fracture and separation of symphysis
pubis with low back pain was at no time productive of forward
flexion greater than 30 degrees but not greater than 60
degrees or a combined range of motion not greater than 120
degrees.
4. For the period beginning January 16, 2004, the veteran's
pelvis fracture and separation of symphysis pubis with low
back pain has been manifested by forward flexion of the
thoracolumbar spine to 30 degrees, but ankylosis is not
present.
5. The veteran has no significant neurological impairment
due to the service-connected pelvis fracture and separation
of symphysis pubis with low back pain.
6. An April 1973 denying service connection for a contusion
of the bladder and a December 1976 rating decision declining
to reopen the claim were supported by evidence then of
record..
7. Service connection for lumbosacral nerve root injury with
radiculopathy was expanded to include service connection of
RSD and served as a basis for an increased evaluation for the
overall disability; the proper effective date is June 28,
1991, the date a prior Board decision determined that it was
factually ascertainable that an increase in disability had
occurred.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 40 percent for
residuals of lumbosacral nerve root injury with radiculopathy
and history of RSD have not been met during the period
beginning June 28, 1991. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2006).
2. The criteria for a rating in excess of 10 percent for
pelvis fracture and separation of symphysis pubis with low
back pain have not been met during the period beginning June
28, 1991, and prior to January 16, 2004. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002);
38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5292, 5294 (2003);
38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic
Codes 5235-5243 (2006).
3. The criteria for a rating in excess of 40 percent for
pelvis fracture and separation of symphysis pubis with low
back pain have not been met during the period beginning
January 16, 2004. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-
5243 (2006).
4. The RO decisions of April 1973 and December 1976, denying
service connection for a contusion of the bladder, were not
based on CUE. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §
3.105 (2006).
5. The criteria for an effective date earlier than June 28,
1991, for the award of service connection for RSD have not
been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 &
Supp. 2005), and the pertinent implementing regulation,
codified at 38 C.F.R. § 3.159 (2006), provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. In addition, VA must also request
that the veteran provide any evidence in the claimant's
possession that pertains to the claim.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. at 121. However, the Court also stated that
the failure to provide such notice in connection with
adjudications prior to the enactment of the VCAA was not
error and that in such cases, the claimant is entitled to
"VCAA-content complying notice and proper subsequent VA
process." Id. at 120.
The timing requirement enunciated in Pelegrini applies
equally to the initial-disability-rating and effective-date
elements of a service-connection claim. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
In the instant appeal, the initial unfavorable rating
decisions were rendered prior to the enactment of the VCAA.
With respect to the increased rating claims and the RSD
claim, the RO provided the veteran with the notice required
under the VCAA, to include notice that he should submit any
pertinent evidence in his possession, by letters mailed in
February 2001, January 2002, June 2005, and October 2006.
The veteran was also provided with the requisite notice with
respect to the effective-date element of his increased rating
claims in the June 2005 VCAA notice. Therefore, the Board is
satisfied that the requirements of the notice provisions of
the VCAA have been met, and there is no outstanding duty to
inform the veteran that any additional information or
evidence is needed.
In regard to VA's duty to assist, the record reflects that VA
assisted the veteran by obtaining VA treatment records and
affording the veteran appropriate examinations that assessed
the severity of his service-connected disabilities. Neither
the veteran nor his representative has identified any
outstanding evidence, to include medical records, that could
be obtained to substantiate his claims. The Board is also
unaware of any such outstanding evidence. Therefore, the
Board is satisfied that the RO has complied with the duty to
assist requirements of the VCAA and the pertinent
implementing regulation.
Following the provision of the required notice and the
completion of all indicated development of the record, the RO
readjudicated the veteran's claims in November 2006. There
is no indication in the record or reason to believe that any
ultimate decision of the RO would have been different had
complete VCAA notice been provided at an earlier time.
In sum, the Board is satisfied that any procedural errors in
the development and consideration of the claims by the RO
were insignificant and non-prejudicial to the veteran.
As for the claim for an earlier effective date for service
connection for neurogenic bladder based on CUE, the VCAA is
not applicable to CUE claims. In Livesay v. Principi, 15
Vet. App. 165 (2001), the Court held that "there is nothing
in the text or the legislative history of VCAA to indicate
that VA's duties to assist and notify are now, for the first
time, applicable to CUE motions." The Court in Livesay held
that CUE claims are not conventional claims, but rather are
requests for revision of previous decisions. A claim of CUE
is not by itself a claim for benefits. Thus, CUE is
fundamentally different from any other kind of action in the
VA adjudicative process. A litigant alleging CUE is not
pursuing a claim for benefits, but rather is collaterally
attacking a final decision. Thus, a "claimant," as defined
by 38 U.S.C.A. § 5100, cannot encompass a person seeking a
revision of a final decision based upon CUE. As a
consequence, VA's duties to notify and assist contained in
the VCAA are not applicable to the veteran's CUE claim.
Accordingly, the Board will address the merits of the claims.
II. Increased Ratings
A. Evidence
In an April 1992 letter, Dr. J.S. reported that an
examination revealed a diminished right Achilles reflex. Dr.
J.S. noted that the examination showed no gross muscle
atrophy or weakness or saddle area sensory loss. Dr. J.S.
indicated that the veteran apparently had been functioning
effectively as a welder in a manufacturing job.
An April 1992 VA examination report notes that the veteran
complained of pain down his right leg. Range of motion
testing disclosed flexion to 80 degrees, extension to 20
degrees, lateral flexion to 15 degrees, bilaterally, and
rotation to 45 degrees, bilaterally.
A January 1995 VA treatment record notes that an examination
revealed decreased sensory to light touch, temperature, and
pinprick. The veteran had "motor strength" of 3/5 and
"strength" of 5/5 in the right lower extremity.
In a March 1995 letter, Dr. J.S. reported that the
examination revealed a trace right Achilles response. The
veteran reported that he had not worked in the past eighteen
months.
The March 1995 VA examination report shows that the veteran
complained of intermittent low back pain. No muscle spasm
was palpable. On range of motion testing, forward flexion
was to 71 degrees, extension was to 8 degrees, left side
bending was to 15 degrees, right side bending was to 12
degrees, rotation to the left was to 45 degrees, and rotation
to the right was to 30 degrees. Simulated rotation of the
trunk was strongly positive for low back pain. Achilles
tendon reflexes could not be elicited. On testing for muscle
strength, give away was noted for all major muscle groups of
the right lower extremity. There was no muscle atrophy. The
examiner commented that throughout the examination, the
veteran continuously groaned and complained of pain, and
there was marked grimacing. The examiner maintained that the
veteran's pain response to even mild touch appeared to be out
of proportion. The examiner noted that after completion of
the examination, the veteran was observed getting dressed; he
was able to bend forward and to replace his shoes flexing his
back in excess of the range of motion observed during the
formal examination. The examiner diagnosed low back pain
syndrome without objective evidence of impairment. The
examiner further maintained that there was evidence of
symptom magnification and that the veteran's pain behavior
was inappropriate and totally out of proportion to any
possible orthopedic disorder.
A May 1995 VA treatment record notes that the veteran
disputed that he was exaggerating his symptoms. The examiner
maintained that the veteran was not known to be exaggerating
his symptoms.
A March 1996 VA examination report shows that the veteran
reported that he had no pain in the lumbosacral area.
Rather, he had pain in the right lower extremity and in the
right half of his pelvis. Another March 1996 VA examination
report shows that the examiner reported that the veteran did
not currently show evidence of gross motor or sensory
deficits or significant muscle atrophy in the affected limb.
A June 1999 report of a fee-basis compensation and pension
examination shows that on range of motion testing, the
veteran had flexion to 95 degrees (normal noted as 95
degrees), extension to 25 degrees (normal noted as 35
degrees), right lateral flexion to 40 degrees (normal noted
as 40 degrees), left lateral flexion to 35 degrees, right
rotation to 35 degrees (normal noted as 35 degrees), and left
rotation to 30 degrees. The examiner related that the
veteran reported mild pain with lumbar range of motion at the
extremes of flexion and extension. Manual muscle testing of
the right lower extremity revealed 5/5 strength throughout
all major muscle groups. The examiner noted that there was
no visible muscle atrophy of the lower extremities. The
examiner commented that there were no visible manifestations
of pain on range of motion of the spine, which was noted to
be nearly normal. The examiner concluded that there was no
evidence of loss of muscle strength or significant muscle
atrophy.
In a June 1999 report, Dr. D.R. reported that the veteran
complained of pain with any degree of passive or active
movement of the right leg. Dr. S.R. diagnosed right S1
radiculopathy. Dr. S.R. noted that the veteran had a
diminished right Achilles reflex, which he maintained was the
only objective peripheral nerve finding left as a residual of
his multiple lumbosacral root or plexus nerve injury. Dr.
S.R. indicated that the veteran had significant dysfunction
as a consequence of pain in the pelvis and right leg,
however, the examination did not suggest an obvious
anatomical explanation for these symptoms. Dr. S.R. related
that pain was visibly manifested by active and passive
movements of the joints, however, there was no evidence of
muscle atrophy.
The September 22, 2003, VA examination report notes that the
veteran's pain syndrome had increased slightly following a
calcaneus fracture he sustained in his right foot.
The January 16, 2004, VA examination report shows that a
physical examination revealed variable tenderness at both
sacroiliac joints and palpable right lumbar paraspinous
spasm. Only a purplish discoloration of the right lower leg
was observed. On range of motion testing, the veteran had
forward flexion to "about" 30 degrees, and he tilted left
and right to 15 degrees, limited by pain on the left along
the iliac crest, and on the right more at the sacroiliac
joint. Motor strength was 5/5 for knee extension and flexion
and in the right anterior tib, but extensor hallucis was
barely 2/5. The veteran's reflexes in his right Achilles
were not examined at his request due to tenderness and pain
in the area of his heel.
A follow-up VA examination report dated in June 2005 notes
that the veteran had decreased range of motion of his lumbar
spine, limited by pain along the iliac crest and in the
sacroiliac joint area. X-rays of the pelvis showed
irregularity and calcification of the symphysis pubis as well
as the right ischium, consistent with previous pelvic
diastasis. X-rays of the lumbar spine revealed good
preservation of the disk spaces and good alignment.
A follow-up VA examination report dated in October 2006 notes
that on range of motion, the veteran had flexion to 30
degrees, extension to 10 degrees, bilateral lateral bend to
10 degrees, left rotation to 10 degrees, and right rotation
to 12 degrees. The examiner noted that the veteran's motion
in all directions was slow and guarded, and that he
complained of pain throughout all movements, which he
indicated rose to a level of 8 to 10/10 at the extreme end-
points of motion.
B. Legal Criteria
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4. The percentage ratings in the Rating Schedule
represent, as far as can be practicably determined, the
average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2006).
It is the responsibility of the rating specialist to
interpret reports of examination in the light of the whole
recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately
reflect the elements of disability present. 38 C.F.R. § 4.2
(2006).
The evaluation of the same disability under various diagnoses
is to be avoided. 38 C.F.R. § 4.14 (2006). 38 C.F.R. § 4.14
does not preclude the assignment of separate evaluations for
separate and distinct symptomatology where none of the
symptomatology justifying an evaluation under one diagnostic
code is duplicative of or overlapping with the symptomatology
justifying an evaluation under another diagnostic code.
Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
When there is a question as to which of two evaluations to
apply, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating, otherwise the lower rating shall be
assigned. 38 C.F.R. § 4.7 (2006).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. §§ 3.102, 4.3 (2006).
The Board notes that during the pendency of this claim, the
criteria for rating disabilities of the spine were twice
revised effective September 23, 2002, and effective September
26, 2003. See 67 Fed. Reg. 54,345 (Aug. 22, 2002) and 68
Fed. Reg. 51,454 (Aug. 27, 2003). The criteria for
intervertebral disc syndrome under Diagnostic Code 5293 that
became effective on September 23, 2002, contain notes
addressing the definition of incapacitating episodes and
addressing rating procedure when intervertebral disc syndrome
is present in more than one spinal segment. These notes were
omitted when the criteria for intervertebral disc syndrome
were reclassified as Diagnostic Code 5243, effective on
September 26, 2003. This omission was apparently inadvertent
and was corrected by 69 Fed. Reg. 32,449, 32,450 (June 10,
2004). The correction was made effective from September 26,
2003.
The Board notes that in Kuzma v. Principi, 341 F.3d 1327
(Fed. Cir. 2003), the United States Court of Appeals for the
Federal Circuit (Federal Circuit) overruled Karnas v.
Derwinski, 1 Vet. App. 308 (1991), to the extent that it
conflicts with the precedents of the United States Supreme
Court (Supreme Court) and the Federal Circuit. See Karnas v.
Derwinski, 1 Vet. App. 308, 312-313 (1991).
In VAOPGCPREC 7- 2003, the General Counsel held that Karnas
is inconsistent with Supreme Court and Federal Circuit
precedent insofar as Karnas provides that when a statute or
regulation changes while a claim is pending before VA or a
court, whichever version of the statute or regulation is most
favorable to the claimant will govern unless the statute or
regulation clearly specifies otherwise. The General Counsel
held that the rule adopted in Karnas no longer applies in
determining whether a new statute or regulation applies to a
pending claim. The General Counsel indicated that pursuant
to Supreme Court and Federal Circuit precedent, when a new
statute is enacted or a new regulation is issued while a
claim is pending before VA, VA must first determine whether
the statute or regulation identifies the types of claims to
which it applies. If the statute or regulation is silent, VA
must determine whether applying the new provision to claims
that were pending when it took effect would produce genuinely
retroactive effects. If applying the new provision would
produce such retroactive effects, VA ordinarily should not
apply the new provision to the claim. If applying the new
provision would not produce retroactive effects, VA
ordinarily must apply the new provision. VAOPGCPREC 7-2003.
In accordance with VAOPGCPREC 7-2003, the Board has reviewed
the revised rating criteria. The revised rating criteria
would not produce retroactive effects since the revised
provisions affect only entitlement to prospective benefits.
Therefore, VA must apply the new provisions from their
effective date.
Under the criteria in effect prior to September 26, 2003, a
10 percent evaluation is assigned for sacroiliac injury and
weakness with characteristic pain on motion. A 20 percent
evaluation is assigned for disability of the sacroiliac with
muscle spasm on extreme forward bending and unilateral loss
of lateral spine motion in the standing position. A 40
percent evaluation is assigned for severe disability of the
sacroiliac with listing of the whole spine to the opposite
side, positive Goldthwaite's sign, marked limitation of
forward bending in standing position, loss of lateral motion
with osteoarthritic changes, or narrowing or irregularity of
joint space, or some of the above with abnormal mobility on
forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295
(2003).
Under the criteria in effect prior to September 26, 2003, a
10 percent rating is assigned for slight limitation of motion
of the lumbar spine. A 20 percent rating is assigned for
moderate limitation of motion of the lumbar spine. A 40
percent rating is assigned for severe limitation of motion of
the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292
(2003).
Under the criteria in effect prior to September 26, 2003,
ankylosis of the lumbar spine warrants a 40 percent rating if
it is at a favorable angle or a 50 percent rating if it is at
an unfavorable angle. 38 C.F.R. § 4.71a, Diagnostic Code
5289 (2003).
In determining the degree of limitation of motion, the
provisions of 38 C.F.R. § 4.40 concerning lack of
normal endurance, functional loss due to pain, and pain on
use and during flare-ups; the provisions of 38 C.F.R. § 4.45
concerning weakened movement, excess fatigability, and
incoordination; and the provisions of 38 C.F.R. § 4.10
concerning the effects of the disability on the veteran's
ordinary activity are for consideration. See DeLuca v.
Brown, 8 Vet. App. 202 (1995).
Under the criteria in effect prior to September 23, 2002, a
10 percent evaluation is warranted for mild intervertebral
disc syndrome. A 20 percent evaluation is warranted for
moderate intervertebral disc syndrome with recurring attacks.
A 40 percent evaluation is warranted for intervertebral disc
syndrome if it is severe with recurrent attacks and
intermittent relief. A 60 percent evaluation is warranted
for pronounced intervertebral disc syndrome with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk or other neurological findings appropriate to the
site of the diseased disc, with little intermittent relief.
38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).
Under the criteria which became effective September 23, 2002,
intervertebral disc syndrome is evaluated either on the total
duration of incapacitating episodes over the past 12 months
or by combining under § 4.25 separate evaluations of its
chronic orthopedic and neurologic manifestations along with
evaluations for all other disabilities, whichever method
results in the higher evaluation. 38 C.F.R. § 4.71a,
Diagnostic Code 5293, Note 2 (2003). A 10 percent rating is
assigned for incapacitating episodes of intervertebral disc
syndrome having a total duration of at least one week but
less than two weeks during the past 12 months. A 20 percent
rating is assigned for episodes having a total duration of at
least two weeks but less than four weeks during the past 12
months. A 40 percent rating is assigned for episodes having
a total duration of at least four weeks but less than six
weeks during the past 12 months. A 60 percent rating is
assigned for episodes having a total duration of at least six
weeks during the past 12 months. 38 C.F.R. § 4.71a,
Diagnostic Code 5293 (2003). An incapacitating episode is a
period of acute signs and symptoms due to intervertebral disc
syndrome that requires bed rest prescribed by a physician and
treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code
5293, Note 1 (2003).
Effective September 26, 2003, the criteria for evaluating
disabilities of the spine were revised with reclassification
of the diagnostic codes. These reclassified diagnostic codes
include 5235 (vertebral fracture or dislocation), 5236
(sacroiliac injury and weakness), 5237 (lumbosacral or
cervical strain), 5242 (degenerative arthritis of the spine),
and 5243 (intervertebral disc syndrome). Reference is made
to Diagnostic Code 5003 for degenerative arthritis of the
spine and to the formula for rating intervertebral disc
syndrome based on incapacitating episodes with instructions
to apply the higher evaluation when all disabilities are
combined.
The September 2003 criteria provide a general rating formula
for diseases and injuries of the spine (for diagnostic codes
5235 to 5243 unless 5243 is evaluated under the Formula for
Rating Intervertebral Disc Syndrome Based on Incapacitating
Episodes) with or without symptoms such as pain (whether or
not it radiates), stiffness, or aching in the area of the
spine affected by residuals of injury: They provide that a
10 percent rating is assigned for forward flexion of the
thoracolumbar spine greater than 60 degrees but not greater
than 85 degrees; combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater
than 235 degrees; muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal
contour; or vertebral body fracture with loss of 50 percent
or more of the height. A 20 percent rating is assigned for
forward flexion of the thoracolumbar spine greater than 30
degrees but not greater than 60 degrees; combined range of
motion of the thoracolumbar spine not greater than 120
degrees; or muscle spasm or guarding severe enough to result
in an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis. A 40
percent rating is assigned for forward flexion of the
thoracolumbar spine 30 degrees or less; or favorable
ankylosis of the entire thoracolumbar spine. A 50 percent
rating is assigned for unfavorable ankylosis of the entire
thoracolumbar spine. Normal forward flexion of the
thoracolumbar spine is zero to 90 degrees, extension is zero
to 30 degrees, left and right lateral flexion is zero to 30
degrees, and left and right lateral rotation is zero to 30
degrees. The combined range of motion refers to the sum of
the range of forward flexion, extension, left and right
lateral flexion, and left and right rotation. The normal
combined range of motion of the thoracolumber spine is 240
degrees. The normal ranges of motion for each component of
spinal motion provided in this note are the maximum that can
be used for calculation of the combined range of motion.
Under revised Diagnostic Code 5293 and new Diagnostic Code
5243, intervertebral disc syndrome (preoperatively or
postoperatively) is evaluated either under the general rating
formula for diseases and injuries of the spine or under the
formula for rating intervertebral disc syndrome based on
incapacitating episodes, whichever method results in the
higher evaluation when all disabilities are combined under 38
C.F.R. § 4.25.
Under the criteria in effect throughout the period of this
claim, complete paralysis of the sciatic nerve warrants an 80
percent evaluation; with complete paralysis of the sciatic
nerve, the foot dangles and drops, no active movement of the
muscles below the knee is possible, and flexion of the knee
is weakened or (very rarely) lost. Incomplete paralysis of
the sciatic nerve warrants a 60 percent evaluation if it is
severe with marked muscular atrophy, a 40 percent evaluation
if it is moderately severe, a 20 percent evaluation if it is
moderate or a 10 percent evaluation if it
is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2006).
C. Analysis
Residuals of Lumbosacral Nerve Root Injury with
Radiculopathy, History of RSD
The veteran's service-connected disability is assigned a 40
percent rating under Diagnostic Code 8520.
The veteran complains of pain that radiates into the right
lower extremity, accompanied by burning, hypersensitivity,
and weakness. The objective evidence of record shows that
physical examinations have revealed only little or no
evidence of muscle atrophy. As the veteran's disability is
not productive of marked muscular atrophy, he is not entitled
to a higher disability rating of 60 percent under Diagnostic
Code 8520.
Pelvis Fracture and Separation of Symphysis Pubis with Low
Back Pain
Prior to September 26, 2003
The veteran's service-connected disability was assigned a 10
percent rating under Diagnostic Code 5294 prior to September
26, 2003, and re-assigned to new Diagnostic Code 5235 as of
September 26, 2003.
None of the medical evidence for this period shows that the
veteran had a demonstrable muscle spasm on forward bending or
unilateral loss of lateral spine motion in the standing
position. Thus, the veteran is not entitled to a higher
rating of 20 percent under Diagnostic Code 5294.
As for other potentially applicable diagnostic codes, the
words "slight," "moderate," "severe," and "marked" are
not defined in the VA Schedule for Rating Disabilities.
Guidance is obtained from the amended regulations as the
current definition of normal range of motion for the spine is
based on medical guidelines in existence since 1984. As
previously noted, normal forward flexion of the thoracolumbar
spine is 0 to 90 degrees, extension is 0 to 30 degrees, left
and right lateral flexion is 0 to 30 degrees, and left and
right lateral rotation is 0 to 30 degrees. 38 C.F.R.
§ 4.71a, General Rating Formula for Diseases and Injuries of
the Spine, Note (2) (2006). At the April 1992 VA
examination, the veteran demonstrated a slight loss of motion
on flexion and extension, moderate loss of motion on lateral
flexion, bilaterally, and normal motion on rotation,
bilaterally. At the March 1995 VA examination, he
demonstrated a slight loss of motion on flexion, severe loss
of motion on extension, moderate loss of motion on lateral
bending, bilaterally, and normal motion on rotation,
bilaterally. The VA examiner was of the opinion that the
veteran exaggerated his symptoms, which the veteran denied
according to a subsequent VA treatment record. At the June
1999 VA examination, the veteran demonstrated a slight loss
of motion on extension, left lateral flexion, and left
rotation, and normal motion on flexion, right lateral
flexion, and right rotation. While the veteran reported that
he experienced mild pain, the VA examiner noted that there
were no visible manifestations of pain with range of motion
of the spine, which he maintained was nearly normal. The
foregoing examination findings show that the veteran's
disability is productive of limitation of lumbar motion that
overall more nearly approximates mild impairment than
moderate impairment. Thus, the veteran is not entitled to a
higher rating of 20 percent under Diagnostic Code 5292.
Also, as the veteran retains range of motion in his lumbar
spine in all planes, clearly he does not have ankylosis of
the lumbar spine; therefore, he is also not entitled to a
rating in excess of 10 percent under Diagnostic Code 5289.
As for Diagnostic Code 5293, the veteran has vigorously
contended in several statements of record that he is entitled
to a 60 percent rating because he experiences persistent
symptoms of sciatic neuropathy and he has an absent right
ankle jerk. The Board notes that these complaints are
associated with the neurological manifestations of his
service-connected residuals of lumbosacral nerve root injury
with radiculopathy and history of RSD (discussed above), for
which an evaluation of 40 percent under Diagnostic Code 8520
has already been assigned. To assign a higher rating under
Diagnostic Code 5293 based on the same neurological symptoms
would constitute an impermissible act of pyramiding. See
38 C.F.R. § 4.14 (2006). Therefore, the veteran is not
entitled to a rating in excess of 10 percent under Diagnostic
Code 5293.
Beginning September 26, 2003
With respect to the rating criteria effective September 26,
2003, there are no clinical findings of record between
September 26, 2003, and January 16, 2004. Moreover, from a
longitudinal review of the medical evidence of record,
earlier clinical findings show that the veteran's disability
was not productive of forward flexion greater than 30 degrees
but not greater than 60 degrees or a combined range of motion
not greater than 120 degrees. Also, the veteran did not have
muscle spasm or guarding that resulted in an abnormal gait.
There are no separately ratable neurologic manifestations
associated with this disability. Thus, the veteran is not
entitled to a rating in excess of 10 percent under the
amended schedule for rating spine disabilities for this
period.
Beginning January 16, 2004
The veteran's disability rating was increased to 40 percent
effective January 16, 2004, as the evidence showed forward
flexion of the lumbar spine of 30 degrees. The evidence
further shows that the veteran continues to retain range of
motion in his lumbar spine in all planes, and therefore, he
does not have ankylosis of the lumbar spine. As ankylosis of
the lumbar spine is not shown, he is not entitled to an a
rating in excess of 40 percent for the orthopedic
manifestations of the disability. Additionally, the evidence
continues to show that there are no separately ratable
neurologic manifestations associated with this disability.
Accordingly, the veteran is not entitled a rating in excess
of 40 percent under the amended schedule for rating spine
disabilities for this period.
Other Considerations
The Board has considered whether there is any other schedular
basis for granting a higher rating but has found none. The
Board has also considered whether the case should be referred
to the Director of the VA Compensation and Pension Service
for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1) (2006). The record reflects that the veteran has
not required frequent hospitalizations for his service-
connected residuals of lumbosacral nerve root injury with
radiculopathy and history of RSD and pelvis fracture and
separation of symphysis pubis with low back pain, and that
the manifestations of the disabilities are contemplated by
the schedular criteria. In sum, there is no indication in
the record that the average industrial impairment from the
disabilities would be in excess of that contemplated by the
assigned ratings. Accordingly, the Board has determined that
referral of this case for extra-schedular consideration is
not warranted.
III. Earlier Effective Date Based on CUE-Neurogenic Bladder
In an April 1973 rating decision, the RO denied service
connection for a contusion of the bladder on the basis that
while service medical records showed treatment during service
for the claimed disability, no current disability was shown
on VA examination in March 1973. The veteran essentially
contends that the decision to deny service connection was
based on CUE because he was not examined in March 1973 as he
was on TDRL [Temporary Disability Retirement List]. He
maintains that had he been examined, a current disability
would have been shown.
In a December 1976 rating decision, the RO did not adjudicate
the issue of entitlement to service connection for bladder
disability. It did note that the veteran should be advised
that service connection for contusion of the bladder was
previously denied in the April 1973 rating decision as not
found on the last examination and that to reopen the claim,
he must present evidence that there are residuals of the
contusion of the bladder. The notice of decision letter
mailed to the veteran in June 1977 failed to include the
foregoing information. The veteran essentially contends that
the September 1976 VA examination was inadequate and that had
he been adequately examined, a current disability would have
been shown.
An unappealed decision of the RO becomes final and binding
and is not subject to revision on the same factual basis in
the absence of CUE. Previous determinations which are final
and binding will be accepted as correct in the absence of
CUE. Where evidence establishes such error, the prior
decision will be reversed or amended. 38 U.S.C.A. § 5109A
(West 2002); 38 C.F.R. § 3.105(a) (2006).
The criteria to determine whether CUE was present in a prior
determination are as follows: (1) either the correct facts,
as they were known at the time, were not before the
adjudicator (i.e., there must be more than a simple
disagreement as to how the facts were weighed or evaluated)
or the statutory or regulatory provisions extant at the time
were incorrectly applied; (2) the error must be undebatable
and of the sort which, had it not been made, would have
manifestly changed the outcome at the time it was made; and
(3) a determination that there was clear and unmistakable
error must be based on the record and law that existed at the
time of the prior adjudication in question. Russell v.
Principi, 3 Vet. App. 310 (1992).
CUE is a very specific and rare kind of 'error.' It is the
kind of error, of fact or of law, that when called to the
attention of later reviewers compels the conclusion, to which
reasonable minds could not differ, that the result would have
been manifestly different but for the error. Fugo v. Brown,
6 Vet. App. 40, 43-44 (1993). If a claimant-appellant wishes
to reasonably raise CUE there must be some degree of
specificity as to what the alleged error is and, unless it is
the kind of error that, if true, would be CUE on its face,
persuasive reasons must be given as to why the result would
have been manifestly different but for the alleged error.
There is a presumption of validity to otherwise final
decisions, and where such decisions are collaterally
attacked-and a CUE claim is undoubtedly a collateral
attack-the presumption is even stronger. See Grover v.
West, 12 Vet. App. 109, 111-12 (1999); Daniels v. Gober, 10
Vet. App. 474, 478 (1997); Caffrey v. Brown, 6 Vet. App. 377,
383-384 (1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994).
See also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999)
(expressly adopting the "manifestly changed the outcome"
language in Russell).
The evidence on file at the time of the April 1973 rating
decision consisted of the veteran's service medical records
and the report of the March 1973 VA examination. The service
medical records show that the veteran was treated in service
for a contusion of the bladder in 1972. The VA examination
report notes that the veteran's in-service injuries included
a urinary bladder injury, but his chief complaint centered on
problems associated with his right leg. It was noted that
there were no other complaints. On examination of his
genitourinary system, no residuals of the contusion of the
bladder were identified. Despite the veteran's current
contention, the examination report reflects that his
complaints were documented and he was examined. The
examination report contains his signature. There is nothing
in the examination report suggesting the presence of an
active bladder disorder or any disabling residuals of the
contusion of the bladder the veteran sustained during
service. Thus, no current disability was shown at that time.
The additional evidence on file at the time of the December
1976 rating decision consisted of the report of the September
1976 VA examination, VA treatment records dated from July
1974 to October 1975, and private treatment records dated
from March 1975 to August 1976. The VA examination report
notes that the veteran reported that the only bladder symptom
he experienced was a sense of urgency. He underwent a
special genitourinary examination, and the VA examiner
reported that there was no evidence of significant pathology
of the genitourinary system. The VA and private treatment
records contain no abnormal findings referable to the
bladder. Thus, no current disability was shown at that time.
To the extent that the veteran is disagreeing with how the RO
weighed or evaluated the evidence that was of record, the
Board notes that an allegation that an RO inappropriately
weighed the evidence does not fit the definition of a viable
CUE claim. Specifically, in Damrel v. Brown, 6 Vet. App. 242
(1994), the Court held that the argument that the RO
misevaluated and misinterpreted the evidence available to it
at the time of a final prior determination (i.e., a
reweighing of the evidence) is not the type of administrative
error reversible under 38 C.F.R. § 3.105(a).
In summary, there was no error of fact or law, that when
called to the attention of later reviewers compels the
conclusion, with which reasonable minds could not differ,
that the result would have been manifestly different but for
the error-there was no CUE. In light of the above, the
Board finds that the claim based on CUE must be denied due to
the absence of legal merit under the law. See Luallen v.
Brown, 8 Vet. App. 92, 96 (1995); Sabonis v. Brown, 6 Vet.
App. 426, 429-30 (1994).
IV. Earlier Effective Date-RSD
The effective date of an award of service connection based on
a claim received more than one year after discharge from
service is the later of the date of receipt of claim or date
entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400
On November 21, 1991, the veteran filed a claim for service
connection of RSD as secondary to service-connected
disability. In an August 1992 rating decision, the RO denied
service connection for RSD. The veteran was informed of the
determination and his procedural and appeal rights in a
notice of decision letter and attachment mailed to him in
August 1992, but he did not appeal the decision. Based on a
statement and attachments received in April 1997, the RO
declined to reopen the previously disallowed claim in an
April 1997 rating decision. The veteran perfected an appeal
of this decision to the Board. In a March 1998 decision, the
Board reopened the claim and remanded the claim to the RO for
further development. While the case was in remand status, in
November 2000 and August 2001 rating decisions, the RO
expanded a service-connected disability (lumbosacral nerve
root injury with radiculopathy) to include service connection
for RSD, and increased the overall disability rating from 20
percent to 40 percent effective from November 21, 1991. The
veteran perfected an appeal of the effective date assigned
for the 40 percent disability evaluation to the Board.
In a November 2001 decision, the Board determined that the
veteran was entitled to an earlier effective date of June 28,
1991, for the increased evaluation based on VA treatment the
veteran received that date. The Board at that time noted
that an increased award will be effective from the earliest
date that it is factually ascertainable that an increase in
disability had occurred if a claim is received within one
year thereof. 38 U.S.C.A. § 5110(a), (b) (West 2002); 38
C.F.R. § 3.400 (2006). The Board found that the evidence
satisfactorily established that the degree of disability
justifying the increased award of 40 percent existed as of
June 28, 1991. In the instant appeal, as the veteran's RSD
disability has been included as part of the service-connected
disability of lumbosacral nerve root injury with
radiculopathy, the effective date of June 28, 1991, is
proper. There is nothing in the record that could be
construed as an earlier claim for service connection for this
disability. Consequently, an earlier effective date is not
warranted.
ORDER
A rating in excess of 40 percent residuals of lumbosacral
nerve root injury with radiculopathy and history of RSD for
the period beginning June 28, 1991, is denied.
A rating in excess of 10 percent for pelvis fracture and
separation of symphysis pubis with low back pain for the
period beginning June 28, 1991, and prior to January 16,
2004, is denied.
A rating in excess of 40 percent for pelvis fracture and
separation of symphysis pubis with low back pain for the
period beginning January 16, 2004, is denied.
Entitlement to an effective date earlier than November 21,
1991, for service connection for neurogenic bladder based on
CUE is denied.
Entitlement to an effective date earlier than June 28, 1991,
for service connection for RSD is denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs